Video Recordings Act 1984 (Exempted Video Works) Regulations 2014

Baroness Howe of Idlicote Excerpts

Monday 28th July 2014 Grand Committee

Your Lordships’ House has only recently amended the Public Order Act to remove the word “insulting” from Section 5 because the view was that the threshold of “threatening, abusive or insulting” was too high. It therefore seems very odd that today we should be contemplating the extraordinarily low threshold in paragraph (o).

[Baroness Howe of Idlicote (CB)]

My Lords, like the noble Lord, Lord Alton, I have a number of issues to raise but, first, I welcome these new regulations. Like the noble Lord, I seek assurances from the Minister about some of the content.

As we know, the Video Recordings Act currently exempts, music, sports, educational and religious DVDs from having to be classified, unless they show to a significant extent certain types of material. Sadly, that approach has opened the door to abuse. Music and sports DVDs, for example, have been found containing adult content and, in that context, it is right that such videos should not be exempt and children should be protected from such content.

We debated an amendment to the Digital Economy Bill in 2010 that would have caused similar outcomes to those sought in these draft regulations. The then Government gave an assurance that they would revisit the issue. Since that time, the Bailey review also recommended legislation to close the loophole. The resulting regulations that are before us make it clear that exempted works that depict content such as suicide, self-mutilation and sexual activity that is not deemed to be mild must be rated. Depictions that result in the DVD work losing its licence are listed in the regulations in proposed new paragraphs (a) to (o) and have been explained, but I shall refer to them.

I warmly welcome these provisions, although I have some concerns about the use of the word “mild”. Like the noble Lord, Lord Alton, I believe that there is cause for some concern. The provision states that any exempted work should lose its exemption if,

“it includes words or images that are intended or likely (to any extent) to cause offence, whether on the grounds of race, gender, disability, religion or belief or sexual orientation, or otherwise”.

Why is this cause for concern? Unlike the conditions listed in proposed new paragraphs (a) to (n), “offence” is a very subjective category with a low threshold. Moreover, that is compounded in paragraph (o) by two facts. First, the issue of whether of a work was designed to cause offence is irrelevant. Secondly, it does not matter how minor the offence is—if it causes some offence to any extent, the work loses its exemption.

It seems to me that all religious DVDs would have to be rated. Consider a DVD that includes a hymn declaring that Jesus was the son of God. That would be offensive to Muslims, who believe that Jesus was only a prophet. What about a Muslim DVD that says that Jesus was not the son of God but only a prophet? That would cause offence to some Christians.

The Government seek to reassure us in paragraph 8.6 of the Explanatory Memorandum that there is no need for concern. It states that,

“the BBFC already makes determinations about whether the content is or is not discriminatory for other video works … and it does this from an objective viewpoint and based on principles set out in its classification guidelines”.

However, there is no reference in the Video Recordings Act to the detail of classification guidelines and how they might impact on a particular film or other work. The Government are right that the BBFC guidelines already cover discrimination. Page 5 of the 2014 guidelines says:

“Potentially offensive content relating to matters such as race, gender, religion, disability or sexuality may arise in a wide range of works … the classification decision will take account of the strength or impact of their inclusion. The context in which such content may appear also has a bearing”.

None of this nuance is in the legislation.

The Minister will no doubt respond by saying that such a condition of words and images that may cause offence is already in effect for video games— Section 2A of the Video Recordings Act—and, of course, that is correct. This insertion to the law was made through Section 40 of the Digital Economy Act 2010, the debate on which I have already referred to. However, the Secretary of State can amend these criteria by regulation and under Section 2A(6) these regulations,

“may make provision by reference to documents produced by the designated authority”.

This implies that the classification guidelines produced for video games by the Games Rating Authority—an arm, of course, of the Video Standards Council—could be referenced for exemption criteria for video games in the legislation.

My difficulty is that, as the letter of the law we are asked to sign off today has a different threshold from the guidelines, there would be nothing to stop an easily offended person from going to court claiming that something that had caused them offence should not be exempt. In this context, the judge would have to apply the law as it is set out before us today with its extraordinarily low threshold and find in favour of the person who is easily offended. This would then force the BBFC to change its practice.

In raising this concern I want to be clear that I am not arguing that all religious DVDs should be exempt. My concern is simply that the threshold in proposed new paragraph (o) is so low that we risk moving from one extreme—where all religious DVDs are exempt—to the other where, as a matter of practice, most, if not all, would not be because of their potential to cause offence to those from a different faith tradition or radical secularist point of view.

I also want to be very clear that I am not suggesting that people have such a low tolerance of views contrary to their own that most would claim to have been offended. As the regulations before us today are defined, however, it would only take some to explain why they were offended for a judge to have to rule with the effect that most religious works would lose their exemption. I have a similar concern relating to the robustness of the use of “mild” in the regulations. Of course, I understand that the BBFC has a good definition, but a judge will have to interpret the law and these regulations make no reference to the BBFC’s guidelines.

I hope that the Minister can explain, first, the mismatch between the letter of the proposed paragraph (o) on the one hand and the BBFC’s guidelines and stated intent in the Explanatory Memorandum on the other. Secondly, can he explain the extraordinarily low threshold in (o) where the potential offence is subjective and the intent of the producer and the extent of the said material is irrelevant? Thirdly, can he explain the rationale for allowing reference to guidelines for video games in statute but not video works? Finally, perhaps as a very minimum, can he provide a reassurance that if judges apply the letter of new paragraph (o) such that most religious DVDs, including DVDs of religious services, find themselves having to be rated, the Government will then amend the legislation?